Слике страница
PDF
ePub

therein are representations and not warranties. A warranty differs from a representation in creating an absolute liability, whether made in good faith or not. The reason is that a noncompliance with a warranty operates as an express breach of the contract, while a misrepresentation renders the policy void on the ground of fraud. The questions propounded in the application, as set out in the statement of facts, call for answers founded on the knowledge or belief of the applicant, and in such cases a misrepresentation or omission to answer will not avoid the policy, unless willfully or knowingly made with an attempt to deceive. 25 Cyc. 801, and cases cited. See, also, Reppond v. Nat. Life Ins. Co. [100 Tex. 519, 101 S. W. 786] 11 L. R. A. (N. S.) 981 [15 Ann. Cas. 618]; Etna Life Ins. Co. v. Rehlaender, 68 Neb. 284 [94 N. W. 129], 4 Ann. Cas. 251."

who would still be a fit subject for insurance. And if these answers were not made willfully or knowingly with an intent to deceive, they will not avoid the policy. Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 105, 150 S. W. 393, and cases there cited.

[3] It is also insisted that the verdict is excessive. But upon this feature of the case little need be said, once it has been deterJudgment mined that any liability exists. was rendered under the clause of the policy which fixes the indemnity to be paid in case of total disability; and it is said that the plaintiff was not totally disabled during the period

for which he was allowed to recover for total disability. It is true the proof does show that for a few days after the injury plaintiff did some work; but this work was irregular and desultory. He could not follow his employment with any regularity for even a day, and the work he attempted to do became so painful that he was compelled to desist. We think this testimony warranted a finding of total disability. Great Eastern Casualty Co. v. Robins, 111 Ark. 607, 164 S. W. 750; Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029; Order U. C. Travelers v. Barnes, 72 Kan. 293, 80 Pac. 1020, 82 Pac. 1099, 7 Ann. Cas. 809.

What we have just said disposes of the company's contention that the right of recovery is governed by the provisions of paragraph B, which reads as follows:

[2] Testifying concerning his rupture, plaintiff stated that he was not asked if he had been ruptured, but that he was asked, "Are you ruptured?" and that his answer that he was not ruptured was the truth. He stated that the questions and answers were not read over to him, and that he signed the application without knowing that any incorrect answers had been written down on the application blank. This statement was contradicted by the company's agent; but the finding of the court, who sat, by consent, as a jury, is conclusive on this question of fact, as the court expressly declined to find, at the company's request, that plaintiff had misrepresented his physical condition. If the answer was correctly given by the applicant and, without knowledge or collusion on his part, an incorrect answer was written into the application by the agent, the company is as completely bound by this action of its agent as it would have been had that agent wholly and continuously, from date of accident, "(B) Or, if such injuries shall immediately, put down in the application the correct an- disable and prevent the insured from performswers to the questions asked. Mutual Aiding one or more important daily duties pertainUnion v. Blacknall, 196 S. W. 792; United Assur. Ass'n v. Frederick, 195 S. W. 691; Liv. & London & Globe Ins. Co. v. Payton, 128 Ark. 528, 194 S. W. 503; Westchester Fire Ins. Co. v. Smith, 128 Ark, 92, 193 S. W. 275; Hutchins v. Globe Life Ins. Co., 126 Ark. 360, 190 S. W. 446; Maloney v. Mary-vided, the combined period for which indemnity land Casualty Co., 113 Ark. 174, 184, 167 S. W. 845; Peebles v. Eminent Household of Columbian Woodmen, 111 Ark. 436, 164 S. W. 296; Queen of Ark. Ins. Co. v. Laster, 108 Ark. 261, 156 S. W. 848; Franklin Life Ins. Co. v. Galligan, 71 Ark. 295, 73 S. W. 102, 100 Am. St. Rep. 73; Mutual Reserve Fund Life Ass'n v. Farmer, 65 Ark. 581, 47 S. W. $50.

It is not contended that plaintiff knew or could have known that he had a mobile cæcum, and the fact that he was thus afflicted cannot, therefore, constitute a false representation that he was "in sound and healthy condition, mentally and physically." As to the broken wrist and the blow on the head and chills and fever the court, no doubt, found that none of these things were material to the risk, but that they were such vicissitudes as might occur to any pilgrim on

"Partial Disability.

ing to his occupation, or in the event of like
ty, or in event of total disability not immediate-
disability, immediately following total disabili-
ly following injury, but within fifteen days of
date of injury, the company will pay the insur-
ed for the period of such disability, not exceed-
ing two consecutive months, one-half of the rate
above specified for the total loss of time: Pro-

shall be paid for total and partial disability de-
not exceed twelve consecutive months."
scribed in paragraphs (a) and (b) hereof shall

It is true, as stated, that the trouble developed by the accident culminated in the operation which was performed more than 15 days after the date of the injury. But the testimony shows that during this interval of time the plaintiff was doing what he could to avoid the consequences of his injury, and that, while more than 15 days elapsed before the operation which was finally performed was performed, still during that interval the plaintiff was so completely disabled that he did not follow his regular occupation during all of any day. For the meaning of the word "immediately," as used in this connection, see the case of Continental Casualty Co. v. Ogburn, 175 Ala. 357, 57 South. 582, which is annotated in Ann. Cas.

[4] It is finally insisted that the recovery [ing to yield possession of, to hand over, or to is excessive because of paragraph H of the surrender. policy, which provides that:

*

"In the event of injury or loss, fatal or otherwise, of which there shall be no external or visible marks on the body, * or unnecessary exposure to danger, the limit of the company's liability shall be one-fourth of the amount which would otherwise be payable under this policy, and the limit of the company's liability under this paragraph shall not exceed two months' disability, anything herein to the contrary notwithstanding."

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Deliver.] 4. INTOXICATING LIQUORS 219, 222 INDICTTRANSPORTATION AND DELIVERY

MENT.

In an indictment for violation of Acts 1917, P. 41, § 1, denouncing the shipment, transportation, or delivery of intoxicating liquors from any other state, territory, or foreign country to another person, firm, or corporation in Arkansas, it is unnecessary to specify the names of the persons to whom the liquor has been transported or delivered, and, by section 16 it is not necessary to negative the use of the liquor for the purposes constituting an exemption under the statute; that is, for sacramental or medicinal purposes. 5. INTOXICATING LIQUORS 239(1)-TRANSPORTATION AND DELIVERY-INSTRUCTIONS.

The purpose, no doubt, of this provision was to prevent imposition upon the company by malingering or simulating an injury which did not exist, and the company, in this manner, had undertaken to guard itself against any such fraud or imposition by stipulating In a prosecution for violation of Acts 1917, that there should be some visible marks on p. 41, § 1, denouncing the shipment, transportathe body evidencing the injury. This provi- tion, or delivery of intoxicating liquors from one sion, however, cannot be construed as mean- state, territory, or foreign country to another ing that all of the injuries sustained must be person firm, or corporation in Arkansas, it was evidenced by external or visible marks on the error for the court to instruct that if defendants obtained liquors in another state, and from the body. It would be unreasonable to so con-point brought them into a county of Arkansas, strue this policy as to grant immunity to the they were guilty, while refusing to instruct that company against any injury which was not the bringing of liquor into Arkansas for the perso evidenced, if there were visible and exter-sonal use of the individual who brings it does not constitute an offense. nal marks on the body to show that an injury 6. INTOXICATING LIQUORS 223(2)—INDICThad been sustained. It is sufficient if there MENT-VARIANCE. be some visible or external marks which evidence the injury, although the extent of the injury cannot be determined from the visible marks alone. The evidences which exist here were the sprained wrist and the swollen abdomen, and met the requirements of the policy that there shall be a visible and external evidence of the injury sustained.

Finding no prejudicial error, the judgment of the court below is affirmed.

WINFREY et al. v. STATE. (Supreme Court of Arkansas.

(No. 212.) March 11, 1918.) 1. INTOXICATING LIQUORS 138-DELIVERY TO ANOTHER.

A mere delivery of liquor in Arkansas by one person to another, entirely disconnected with the act of transporting liquor into Arkansas, does not constitute an offense under Acts 1917, p. 41, § 1, denouncing the shipment, transportation, or delivery of liquors from another state or territory or foreign country to another person, firm, or corporation in Arkansas.

2. INTOXICATING LIQUORS 210-TRANSPORTATION OR DELIVERY-INDICTMENT.

In a prosecution for transporting liquor into the state and delivering it to another in violation of Acts 1917, p. 41, § 1, proof to show that the liquor was transported by one defendant into the state for delivery to another defendant, and was delivered to him for such purpose, was a variance from the allegations of the indictment charging a delivery to some person other than the three persons named in the indictment. 7. INDICTMENT AND INFORMATION 166 VARIANCE-MATERIAL ALLEGATIONS.

Material allegations in an indictment must be proved according to the allegations.

8. CRIMINAL LAW 1190-SUSPENSION AND REMOVAL INDICTMENT, CONVICTION, AND REVERSAL.

Where the trial court suspended defendants from their offices of constable and deputy constable when an indictment charging violation of the liquor laws was returned against them, and removed them from office as part of the final judgment of guilty, judgment of reversal on appeal disposes of the order of removal, but the preliminary order of suspension if valid, remains in force.

9. SHERIFFS AND CONSTABLES 13-SUSPENSION ON INDICTMENT-VIOLATION OF LIQUOR LAWS.

The statute providing that there shall be an order of suspension on indictment of a county or township officer for incompetency, corruption, It is necessary, in an indictment for violat- gross immorality, criminal conduct amounting to ing Acts 1917, p. 41, § 1, to charge that the a felony, malfeasance, misfeasance, or nonfeastransportation or delivery of intoxicating liquor ance in office, does not authorize the suspension was from without the state of Arkansas to a of a constable and deputy constable from office person, firm, or corporation within the state. on the charge that they violated Acts 1917, p. 3. INTOXICATING LIQUORS 210-TRANSPOR- 41, § 1, by bringing liquor from another state TATION AND DELIVERY-INDICTMENT-"DE- into Arkansas for delivery to another which LIVER." does not relate to official misconduct. 10. OFFICERS 66 REMOVAL ON INFORMATION-CONSTITUTION.

An indictment charging a violation of Acts 1917, p. 41, § 1, which used the words "transport into" and "deliver" conjunctively, sufficiently charged that the transportation and delivery was to some other person, firm, or corporation; the word "deliver," used conjunctively with "transport," necessarily implying a transfer of possession to some other person or entity, mean

Under Const. art. 7, § 27, there may be removals of any county or township officer on information filed for grounds not embraced in a charge of official misconduct. Humphreys, J., dissenting.

Appeal from Circuit Court, County; Jas. Cochran, Judge. W. E. Winfrey and Addis Bryan were convicted of transporting and delivering liquor from another state into Arkansas, and they appeal. Reversed, and cause remanded for further proceedings.

J. D. Benson, of Ozark, and Chas. I. Evans and J. H. Evans, both of Booneville, for appellants. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State.

McCULLOCH, C. J. Appellants Winfrey and Bryan, together with one Oliver, were jointly indicted for the offense of transporting and delivering liquor from another state into this state. All of the three accused persons were tried together before a jury, and Oliver was acquitted. Winfrey and Bryan were each convicted, and have prosecuted appeals to this court.

Crawford | be observed that the indictment uses the words "transport into and deliver" conjunctively, and. thus charges both a transportation and delivery. It is necessary under an indictment for violating the terms of the statute to charge that the transportation or delivery was from without the state to a person, firm, or corporation in the state, but we think that the language of the indictment when construed in its ordinary acceptation is sufficient to charge that the transportation and delivery was to some other person, firm, or corporation. The word "deliver" when used conjunctively with the word "transport" necessarily carries with it the implication of a transfer of possession to some other person or separate entity. The word "deliver" is defined by lexicographers to mean "to yield possession of," or "to hand over," or "to surrender." The Supreme Court of Tennessee in the case of Bird v. State, 131 Tenn. 518, 175 S. W. 554, Ann. Cas. 1917A, 634, which we referred to with approval in the Rivard Case, supra, held that the words "to ship" and the words "to deliver" necessarily implied a shipment or delivery to some one other than the carrier. Whatever doubt may exist as to the correctness of that interpretation of the use of the words "to ship," we think that the use of the word "deliver" in connection with the word "transport" necessarily implies the meaning of a transfer of possession to another, and that this language in the indictment is sufficient to charge the transportation and delivery of liquor by the accused persons to some other person, firm, or corporation.

A demurrer was filed to the indictment on the ground that it failed to state facts sufficient to constitute an offense, and the first ground urged here for reversal of the judgment is that the court erred in overruling the demurrer. The indictment alleges that the three persons accused, naming them, "unlawfully did transport into and deliver in this state certain alcoholic, vinous, malt, spirituous and fermented liquors and compounds and preparations thereof commonly called tonics, bitters and medicated liquors from another state, against the peace and dignity," etc.

[1-3] Section 1 of the act of January 24, 1917 (Acts 1917, p. 41), under which the indictment was preferred, was construed in the recent case of Rivard v. State, 202 S. W. 39, and it is unnecessary to enter into any further discussion at length as to what the statute means. We held that it was merely directed against the shipment, transportation, or delivery of intoxicating liquors from another state or territory or foreign country to another person, firm, or corporation in this state, and that it does not prohibit a person from transporting liquor into the state for his or her own personal use, whether that use be lawful or unlawful. The words in the statute, "from any other state, territory," etc., "to any person, firm or corporation within this state," relate back to each of the words "ship, transport and deliver," which precede them and qualify each of those words so that the act is construed to mean that in order to constitute an offense the shipment or transportation or delivery in this state must be from some other state or territory, etc., to some other person, firm, or corporation within this state. A mere delivery of liquor in this state by one person to another, entirely disconnected from the act of transporting it into the state, does not constitute an offense under this statute. Other statutes make it

[4] It is not necessary in an indictment for this offense to specify the names of persons to whom the liquor has been transported or delivered. Johnson v. State, 40 Ark. 453. Nor is it necessary under an indictment for this offense to negative the use of the liquor for the purposes which constitute an exemption under the statute; that is to say, for sacramental or medicinal purposes. Section 16 of the statute provides that:

"It shall not be necessary to negative the exceptions herein contained, or that the liquors, bitters and drinks were ordered shipped, transported, or delivered for any of the purposes set out in the succeeding section hereof, but such exceptions may be relied upon as defense and the burden of establishing the same shall be upon the person claiming the benefits thereof."

The indictment was therefore sufficient to charge an offense against the provisions of section 1 of the statute referred to.

[5] However, we are of the opinion that the judgment against each of the appellants must be reversed for the reason that the case was submitted to the jury upon an entirely erroneous interpretation of the law by the court, and also for the further reason that the proof was not sufficient under the allegations of the indictment to establish the of fense charged. The court instructed the jury

along the street. He caught up with them after they had gone about a half block, and accosted Winfrey by asking him about the contents of the suit cases, and Winfrey replied that he had, as an officer, seized the suit cases containing whisky, which had been carried on the train by two passengers, who had jumped off of the train a short distance before it reached Van Buren. Bryan came up during the conversation over the matter, and after some controversy the deputy prosecuting attorney was sent for, and the liquor was taken into the custody of the deputy sheriff. The testimony of Winfrey was to the effect that he went to Monett on personal business and did not procure the liquor in question, or any other liquor, or bring the same into the state, but that after the train on which he traveled came into Arkansas he felt it his duty to take observation as to persons bringing liquor into the state on the train, and that when the train approached Van Buren he had taken notice of two men with the suit cases in question; that when he found that those two persons had gotten off the train he seized the suit cases as an officer, and took them off the train with him when he reached Van Buren, and that he handed one of the suit cases to Oliver merely to obtain help in carrying the liquor to some place for it to be kept in the custody of the law. Oliver fully corroborated Winfrey in the latter's statement with reference to handling the liquor after he debarked from the train at Van Buren with the suit cases He testified that he went to in his hands.

in another state, "and from that point | men, and followed them a short distance brought the said liquors into Crawford county, this state," they were guilty under the statute, and refused to instruct the jury, at the request of appellants, that the bringing of liquor into this state for the personal use of the individual who brings it in does not constitute an offense. The ruling of the court on those instructions was in conflict with the law as declared by this court in the Rivard Case, supra, and the judgments of conviction must for that reason be reversed. It is insisted by the Attorney General in the argument here that notwithstanding the erroneous interpretation of the law by the trial court, the guilt of the two appellants is established by undisputed evidence in that the proof shows, without contradiction, that there was a delivery of liquor by appellants to another person in the state, and that the jury found upon legally sufficient evidence, and upon instructions free from error affecting that matter, that appellants transported liquors into the state. We cannot agree with the contention of the Attorney General either that the testimony as to delivery to another person was uncontradicted, or that the evidence was sufficient under the particular charge in the indictment to show a delivery to another person. The date of the commission of the offense was alleged in the indictment to be on November 9, 1917, and the proof of the state was directed to an offense There was also committed on that date. proof tending to show that the two appellants brought liquor into the state on another date, but it added nothing to the strength of the proof directed to the offense alleged to have been committed on November 9th, except in corroboration, so it is only necessary to call attention to the state of the proof with respect to the conduct of the appellants on the date mentioned in the indictment.

Appellants and Oliver lived in the city of Van Buren. Winfrey was constable of the township, and Bryan was his deputy. Bryan was also a grocery merchant in the city, but held a commission from Winfrey as deputy constable. Oliver was a member of the police force in the city of Van Buren. The evidence adduced by the state shows that Winfrey went to Monett, Mo., and returned to Van Buren on a passenger train on November 9th, with two suit cases containing considerable quantity of whisky in bottles, and that he brought the suit cases along as personal baggage without checking them. When the train came to a stop at the Van Buren station Winfrey descended from the coach with the suit cases in his hands, and handed over one of the suit cases to Oliver, who was standing on the platform, and the two of them started up the street, each carrying a suit case, which was afterwards found to contain whisky. A deputy sheriff who was standing on the

the station that day and bought a ticket to Ft. Smith, intending to make the trip over on the train to look for baggage containing intoxicating liquors, but that Winfrey stepped off the train with the suit cases in his hands and told witness that it was unnecessary to make the trip, for the reason that he had

just made seizure of liquor on the train, and that Winfrey asked him to assist in taking charge of the liquor as an officer.

The state brought out certain circumstances calculated to weaken the testimony of Oliver, but the jury might under proper instructions, have accepted the testimony of Oliver concerning the intention of Winfrey in handing over the liquor to Oliver and the intention of the latter in accepting it. It cannot be said that the testimony is undisputed on this issue, or that the jury, notwithstanding the erroneous instructions of the court, necessarily found that there was a delivery of the liquor into the state to another person within the meaning of the statute.

[6, 7] But we are also of the opinion that even if there had been enough proof to show that the liquor was transported by Winfrey into the state for delivery to Oliver, and was delivered to him for that purpose, such proof was a variance from the allegations of the

sarily be interpreted to charge a delivery to some person other than the three persons named in the indictment.

The reasons we give for holding that the indictment is sufficient is that the language necessarily amounts to a charge that the three persons named transported and delivered the liquor to some person other than themselves. It would therefore be highly inconsistent to say that the language included the charge of one of the persons named making the transportation and delivery to another one of those named. It is unnecessary, as before stated, to name the particular person or persons to whom the transportation or delivery has been made, but it is necessary to allege that it was done for some other person, firm, or corporation; and when the allegation is that two or more persons join in committing the offense of transporting and delivering to some other person, it is a variance from that allegation to attempt to show a delivery by one of those persons to another. Material allegations in an indictment must be proved according to the allegations. Bryant v. State, 62 Ark. 459, 36 S. W. 188; Woods v. State, 114 Ark. 391, 170 S. W. 79; Payne v. State, 124 Ark. 20, 186 S. W. 612.

[8] The trial court suspended appellants from their respective offices of constable and deputy constable when the indictment was returned, and removed them from office as a part of the final judgment in the cause. Of course, the judgment of reversal disposes of the final order of removal, but the preliminary order of suspension, if valid, remains in

force.

[9] We do not think, however, that the statute authorizes the suspension from office upon this kind of a charge, which does not relate to official misconduct. The statute provides that there shall be an order of suspension on indictment of a county or township officer for "incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office." There is no charge of official misconduct made in this indictment, nor a charge of "criminal conduct amounting to a felony."

[ocr errors]
[ocr errors]

dictment. This was unauthorized by statute, and the order is void, and should be quashed.

The judgment against each of the appellants is therefore reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

HUMPHREYS, J., dissents.

HERMITAGE SPECIAL SCHOOL DIST.
NO. 12 et al. v. INGALLS SPECIAL
SCHOOL DIST. NO. 18 et al. (No. 229.)
(Supreme Court of Arkansas. March 18, 1918.)
1. STATUTES 141(1)—AMENDMENT BY REF-
ERENCE TO TITLE.

Acts 1917, p. 1707, § 1, clearly intended to merely add territory to a school district already created, and, although it used the words, "that section 1 of Act No. 382 of the Acts of 1907," which was the act creating the original district, "be amended," did not violate Const. art. 5, § 22, providing that no law shall be amended by reference to its title only.

2. STATUTES 140-AMENDMENT BY REFERENCE TO TITLE-FORM OF STATUTE.

A statute will not be rejected because of its form, unless it falls clearly within the constitutional inhibition, as mere form of expression should be disregarded in searching for the legislative intention.

Appeal from Circuit Court, Bradley County; Turner Butler, Judge.

Proceedings by the Ingalls Special School District No. 18 and others to compel the revenue officers of Bradley county to apportion taxes to them on property which the Legislature attempted to add to the Hermitage Special School District No. 12. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions.

D. A. Bradham, of Warren, for appellants. B. L. Herring, of Warren, for appellees.

McCULLOCH, C. J. A school district designated as Hermitage Special School District was created by an act of the General Assembly of 1907 of territory embraced in a certain common school district in Bradley county. Acts of 1907, p. 962. Section 1 of the statute merely provided that:

"All the territory now embraced in school district No. 12 in Bradley county, Arkansas, be and the same is hereby organized into a special school district to be known and designated as Hermitage Special School District."

[10] The language of the Constitution is broader than the statute, and provides that circuit courts "shall have jurisdiction upon information, presentment or indictment to reThere were other sections of the statute move any county or township officer from conferring certain powers on the special office for incompetency, corruption, gross imschool district thus created. The General Asmorality, criminal conduct, malfeasance, sembly of 1917 by the enactment of another ** or nonfeasance in office." Article 7, § 27. Under this provision of the Constitu- statute (Act No. 341) undertook to add certain other adjoining territory to Hermitage tion there may be removals on information Special School District. The change purports filed for grounds not embraced in a charge to be in the form of an amendment to the of official misconduct, but in the present case first section of the original statute creating there was no information filed against appel- the district, and reads as follows: lants to remove them from office. State v. "Section 1. That section 1 of Act No. 382 of Whitlock, 41 Ark. 403. The court made the the Acts of 1907 of the General Assembly of order of suspension on the return of the in- the State of Arkansas, approved May 23, 1907,

« ПретходнаНастави »